Dhillon and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2022] AATA 18
•12 January 2022
Dhillon and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 18 (12 January 2022)
Division:GENERAL DIVISION
File Number: 2020/4486
Re:Ravinder Singh Dhillon
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Linda Kirk
Date:12 January 2022
Place:Sydney
The Tribunal affirms the Reviewable Decision.
.. ..........................SGD............................................
Senior Member Linda Kirk
CATCHWORDS
CITIZENSHIP – whether Applicant satisfies general residence requirement – Applicant has significant periods of absence from Australia - Applicant unable to demonstrate general residence requirement – whether Ministerial discretion should be applied - whether the Applicant maintained a ‘close and continuing association to Australia’ during periods of absence from Australia – Tribunal not satisfied the Applicant’s association with Australia during the relevant period was ‘close and continuing’ – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
CASES
Judd v Minister for Immigration and Border Protection [2017] FCA 827
Kim and Minister for Immigration and Border Protection [2015] AATA 67
Li and Minister for Immigration and Border Protection [2015] AATA 270
Minister for Immigration and Border Protection v Han [2015] FCAFC 79
Mishra and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 2479
Nassif and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 677
Nicholls and Minister for Immigration and Border Protection [2014] AATA 196
Paula and Minister for Immigration and Citizenship [2012] AATA 543
Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Saba and Minister for Immigration and Border Protection [2014] AATA 579
Taher and Minister for Immigration and Border Protection [2013] AATA 917
Yang and Minister for Immigration and Border Protection [2017] AATA 364
SECONDARY MATERIALS
Australian Citizenship Policy Statement
Australian Citizenship Procedural Instructions
REASONS FOR DECISION
Senior Member Linda Kirk
12 January 2022
Ravinder Singh Dhillon (‘the Applicant’) is a citizen of India who first arrived in Australia in June 2008 as the holder of a student visa.[1] In July 2012 he was granted a Subclass 457 Temporary Work (Skilled) visa.[2] He married his Australian citizen spouse on 27 June 2013.[3] The Applicant was granted a Subclass 801 (Partner) visa on 15 September 2016.[4]
[1] Respondent’s Statement of Facts, Issues and Contentions (‘RSFIC’) Annexure C.
[2] Exhibit R1 (‘Tribunal Documents’), T4, p. 94.
[3] Exhibit R1, T1, p. 9.
[4] Exhibit R1, T2, p. 47.
On 1 November 2019, the Applicant applied for Australian citizenship by conferral.[5] In his application form, the Applicant indicated that he was seeking an exercise of Ministerial discretion in respect of the residence requirement of the Australian Citizenship Act 2007 (Cth) (‘the Act’).
[5] Exhibit R1, T3, p. 58.
On 1 July 2020, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Respondent’) refused the application because the Applicant did not satisfy the general residence requirement in section 21(2)(c) of the Act and decided not to exercise the Ministerial discretion in section 22(9) of the Act in respect of his overseas absences. The delegate also was not satisfied that, if the application were approved, that the Applicant is likely to reside in Australia or maintain a close and continuing association with Australia such that section 21(2)(g) of the Act was not satisfied (‘the Reviewable Decision’).[6]
[6] Exhibit R1, T2, pp. 44-55.
On 25 July 2020, the Applicant lodged an application for review of the Reviewable Decision with the Tribunal.[7]
[7] Exhibit R1, T1, pp. 1-7.
The matter was heard by the Tribunal on 5 July 2020. The Applicant attended the hearing by video conference and gave oral evidence.
LEGISLATIVE FRAMEWORK
Australian Citizenship Act
Pursuant to section 24(1A) of the Act, the Minister must not approve an application to become an Australian citizen unless, among other things, the person is eligible to become an Australian citizen under subsection 21(2) of the Act.
Section 21(2) of the Act provides:
A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister’s decision on the application
Section 22 of the Act sets out the general residence requirement. It provides:
General residence requirement
(1) Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if:
(a) the person was present in Australia for the period of 4 years immediately before the day the person made the application; and
(b) the person was not present in Australia as an unlawful non-citizen at any time during that 4-year period; and
(c) the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.
Overseas absences
(1A) If:
(a) the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and
(b) the total period of the absence or absences was not more than 12 months;
then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.
(1B) If:
(a) the person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application; and
(b) the total period of the absence or absences was not more than 90 days; and
(c) the person was a permanent resident during each period of absence;
then, for the purposes of paragraph (1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence.
…
Ministerial discretion - spouse, de facto partner or surviving spouse or de facto partner of Australian citizen
(9) If the person is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time the person made the application, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:
(a) the person was a spouse or de facto partner of that Australian citizen during that period; and
(b) the person was not present in Australia during that period; and
(c) the person was a permanent resident during that period; and
(d) the Minister is satisfied that the person had a close and continuing association with Australia during that period.
Citizenship Policy
The Australian Citizenship Policy Statement (‘Policy Statement’) and the Australian Citizenship Procedural Instructions (‘CPI’) provide policy guidance to decision-makers on the interpretation and exercise of powers under the Act. The Tribunal is not bound to strictly apply policy, as it is not law. As the Tribunal stated in Re Aston and Secretary, Department of Primary Industry, ‘Policy is not law. A statement of policy is not a prescription of binding criteria’.[8] However, policy should be given due and proper consideration and weight by the Tribunal unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[9]
[8] (1985) 8 ALD 366 (6 November 1985) at 376.
[9] (1979) 2 ALD 634 at 645 per Brennan J.
CPI 11 provides guidance in making an assessment of whether an applicant is likely to ‘reside or continue to reside in Australia’ or likely ‘to maintain a close and continuing association with Australia’.[10]
[10] Exhibit R1, T10, pp. 194-198.
Procedural Instruction
The purpose of this Instruction is to set out the legal requirements and related policy and procedures that apply to the assessment of whether a person is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the person’s application for citizenship were to be approved.
…
3.2. Only one arm of the requirement must be met
An applicant seeking to satisfy subsection 21(2), (3) or (4) of the Act must be likely to:
·reside or continue to reside in Australia; or
·maintain a close and continuing association with Australia if their application were to be approved.
This means the decision-maker must make a finding about the applicant’s future plans or intentions. The decision-maker may, if they consider it necessary, seek information relevant to this requirement by interview or a request for further information.
Likely to reside or continue to reside in Australia
The words comprising the phrase ‘likely to reside or continue to reside’ should be given their ordinary meaning in the context in which they appear. The Macquarie Dictionary Online defines:
·‘likely’ as probably or apparently going or destined (to do, be, etc.) – in the context of the requirements of the Act, this means it is probable rather than possible that the person will reside in Australia;
·‘reside’ as to dwell permanently or for a considerable time; have one's abode for a time – in the context of the requirements of the Act, this means the person’s home in which they ordinarily live is in Australia.
…
If the decision-maker finds that an applicant is not likely to reside or continue to reside in Australia, the decision-maker must consider whether the applicant will likely maintain a close and continuing association with Australia.
Likely to maintain a close and continuing association with Australia
The words comprising the phrase ‘likely to maintain a close and continuing association’ should be given their ordinary meaning in the context in which they appear. The Macquarie Dictionary Online defines:
·‘maintain’ as to keep in existence or continuance; preserve; retain;
·‘close’ as near, or near together, in space, time, or relation;
·‘continuing’ as to last or endure;
·‘association’ as the act of associating … connection or combination.
It is important to note that the requirement to maintain a close and continuing association refers to an association with Australia, not with Australians. This means that a close and continuing association with immediate/extended family or other social relationships or networks in Australia may not be sufficient to meet this legal requirement, although the merits of every case must be carefully considered.
Paragraph 3.3 sets out a list of factors that may be relevant:
3.3. Factors that may be relevant
Following are examples of factors that may be relevant when assessing whether an applicant is likely to reside or continue to reside in Australia, or maintain a close and continuing association with Australia should their application be approved. These may be explored in an interview or through a request for further information. Decision makers must be mindful that the following factors are a guide only and that each case must be assessed on its facts.
Living arrangements and citizenship/migration status in their current country of residence
A person’s living arrangements and citizenship/migration status in their country of residence (whether that is Australia or elsewhere) may be indicators of their intention to reside in that country and whether they could act on that intent.
Authority to reside in a particular place could be derived from the citizenship of that country, or by a visa or other form of permission that allows the person to reside and work in the country long-term (that may be extended if for a fixed period) or indefinitely.
Factors that may indicate a person intends to reside in a particular place or will maintain a close and continuing association with that place include but are not limited to:
·Whether they are currently renting a home, and if so, when their lease would expire and what options are open to the person to break the lease if necessary;
·Whether they have purchased a property in their country of residence, and whether they reside in the property or have made another arrangement, such as leasing it to a third party;
·Whether they have any assets, commitments or ties to a country that may require or incline them to continue to reside in that country. For example:
oWhat is the person’s source of income? Are they subject to an employment contract and what arrangements do they have in relation to that contract? If the contract is for a defined period of time, do they have an option of extending the contract? Have they indicated they would they do so? Do they operate a business that requires their physical presence or could they run that business remotely? Do grandparents or other relatives provide childcare so the parent/s can work?
oIf the person has been caring for an elderly or sick relative, what arrangements would be made for the care of that relative if the person becomes an Australian citizen? Does the relative still need care or are they recovered or have they died?
oWhat are the schooling arrangements for their children and what are the implications of or plans to change those arrangements? For example, if the child is enrolled in a school that had a long waiting list and requires prepayment of fees, is there an intention to leave the child in that school and what would be the care arrangements for the child? Is the child at a stage of their education where relocation would have an adverse impact and so the parent claims any relocation will occur after the child has completed that stage (for example, if the child has entered a program equivalent to year 11 and 12)?
·Frequency and purpose of visits to Australia if the applicant resides overseas. Is the person simply holidaying, or are they maintaining some form of association with Australia, for example, by undertaking professional studies to ensure they can engage in their profession on return to Australia?
·Frequency and reasons for absences from Australia if the person resides in Australia. For example:
oA person’s absences from Australia would not ordinarily be of concern if they were of a temporary nature, such as when the person was:
§undertaking temporary work overseas for an Australian based company or organisation, or an aid agency;
§accompanying a spouse or de facto partner who was employed by the Commonwealth at an Australian Embassy, High Commission or Consulate;
§participating in Australian cultural activities;
§promoting Australia overseas; or
§enrolled at an overseas university where equivalent studies are not available in Australia;
oA person’s absence/s from Australia because they have continued to work in the same overseas position or for the same employer they had prior to obtaining permanent residence may be an indicator that they have not been residing in Australia and are unlikely to do so;
oWhat has been the person’s motivation for international relocations? Is the person motivated to pursue life opportunities, career or financial advancement regardless of location or are they primarily motivated to pursue those opportunities in Australia?
oAn intention to remain temporarily overseas for work related reasons is not fatal to the application if the decisionmaker is satisfied that the applicant has a genuine intention to reside in Australia at the end of that period;
oDepartmental movement records may be used to establish periods of residence. Passenger cards, where available, may assist in identifying reasons for being outside Australia.
·Participation in the Australian community. For example:
oParticipation in a community group that provides services or engages in activities of benefit to the community;
oMembership of a board or committee of a club, charity or other entity that provides services, recreational or educational opportunities in Australia.
oNote: membership of a club or other body in itself is not likely to amount to participation in the Australian community; nor is usage of a club’s facilities for private purposes. For example, distinction could be made between activities to improve the facilities of a golf club for the benefit of the community, and playing golf at that club.
·The applicant has a close family member (such as a spouse/de facto partner or child) who is an Australian permanent resident or Australian citizen and that family member intends on residing in Australia.
ISSUES FOR DETERMINATION
The issues for determination by the Tribunal are:
1.Does the Applicant satisfy the general residence requirement in sections 21(2)(c) and section 22 of the Act?
2.Should the discretion in section 22(9) of the Act be exercised to treat any or all of the Applicant’s periods of absence from Australia as a period in which he was present in Australia as a permanent resident?
3.Is the Applicant likely to reside, to continue to reside in Australia or maintain a close and continuing relationship with Australia as required by section 21(2)(g) of the Act?
APPLICANT’S EVIDENCE
The Applicant’s evidence is that on 31 May 2017 he travelled with his wife and son to Canada to visit family members. While they were there, his wife was offered and accepted a ‘lucrative opportunity’ as a customer service representative at a notary public office.[11] She began working there once she obtained a permit to work in Canada. She had been trying to further her career in this field in Australia but had been unable to obtain employment. They made the decision to remain in Canada so that his wife could obtain work experience in this role.[12] His wife gave birth to their second son in August 2019 and was on maternity leave until July 2020. [13] When she returned to work she intended to stay at the notary public for another year as it would ‘brighten her chances to get [a] similar position after returning to Australia.’[14] His wife’s employment contract ends on 31 July 2021 and it will not be renewed.[15] It was agreed between his wife and her employer that her contract would not be renewed because she intended to return to Australia in August 2021.[16]
[11] Transcript of proceedings, 5 July 2021, p. 6; Exhibit R1, T1, p. 9.
[12] Transcript of proceedings, 5 July 2021, p. 6.
[13] Exhibit R1, T1, p. 9.
[14] Exhibit R1, T1, p. 9.
[15] Exhibit A6; Exhibit R1, T1, p. 30; Transcript of proceedings, 5 July 2021, pp. 7, 12.
[16] Transcript of proceedings, 5 July 2021, p. 7.
The Applicant is currently working full-time in an administrative role with a real estate firm.[17] His employment is ongoing and he will be the sole income earner in the family once his wife’s contract ends.[18] His evidence is that the experience he is gaining working at the real estate company in Canada will help him in the future as he plans to undertake a realtor course and gain employment in the real estate industry in Australia.[19]
[17] Transcript of proceedings, 5 July 2021, p. 6.
[18] Transcript of proceedings, 5 July 2021, pp. 10, 13.
[19] Transcript of proceedings, 5 July 2021, p. 10.
The Applicant and his wife became skilled permanent residents of Canada in January 2019.[20] Their second son who was born in August 2019 is a Canadian citizen. Their first son is aged seven years and has been attending school since he was aged five. The Applicant and his family are living in a rented property for which they signed a lease agreement in December 2017.[21] It is a continuing month-to-month tenancy which can be terminated with one month’s notice.[22]
[20] Exhibit R1, T4, p. 94; Transcript of proceedings, 5 July 2021, p. 8.
[21] Transcript of proceedings, 5 July 2021, p. 5; Exhibit A4 (Applicant’s Residential Tenancy Agreement).?
[22] Exhibit A4; Transcript of proceedings, 5 July 2021, p. 6.
The Applicant’s brother lives in Canada and is a permanent resident.[23] His parents are also permanent residents, and they reside in Canada for half the year and the other half of the year they live in India.[24] The Applicant’s wife’s sister lives in Australia and her brother lives in the United States.[25]
[23] Transcript of proceedings, 5 July 2021, p. 7.
[24] Transcript of proceedings, 5 July 2021, p. 7.
[25] Transcript of proceedings, 5 July 2021, p. 7.
The Applicant and his family visited Australia for 25 days in May 2019. They came to see family and stayed with his wife’s sister.[26] They have not visited Australia since then due to the COVID-19 pandemic.
[26] Transcript of proceedings, 5 July 2021, pp. 8-9.
In April 2020 the Applicant and his wife were offered a house and land package at Box Hill which was to be completed in the fourth quarter of 2021.[27] However they have since decided not to proceed with the purchase due to the COVID-19 pandemic.[28] They are still in touch with the real estate agent and will find another property once they return to Australia.[29] The Applicant has not earned any business or employment income in Australia since he departed in May 2017. He has however earned a small amount of interest from his bank accounts in Australia.[30]
[27] Exhibit R1, T1, p. 31; Transcript of proceedings, 5 July 2021, p. 9.
[28] Transcript of proceedings, 5 July 2021, p. 9.
[29] Transcript of proceedings, 5 July 2021, p. 9.
[30] Transcript of proceedings, 5 July 2021, p. 9.
The Applicant’s Australian driver’s licence expired and, after making inquiries with the taxi company for which he previously worked, he renewed his licence so that when he returns to Australia he will be able to resume employment as a taxi driver.[31]
[31] Exhibit A2 (Driver’s license of Applicant); Exhibit A3 (Email chain between Applicant and taxi company).
CONSIDERATION AND REASONS
1. Does the Applicant satisfy the general residence requirement in section 21(2)(c) and section 22 of the Act?
The Applicant does not dispute, and the Tribunal finds for the reasons that follow, that he does not meet the general residence requirement in section 21(2)(c) and section 22 of the Act.
As the Applicant applied for citizenship on 1 November 2019, the relevant period for calculation of the residence requirement in section 22(1)(a) is from 1 November 2015 to 1 November 2019. The Applicant’s movement records show that he was present in Australia during the relevant period from 1 November 2015 to 31 May 2017, on which date he departed for Canada.[32] Since that date, the Applicant has returned to Australia once for a period of 25 days from 8 May 2019 to 1 June 2019.[33] Accordingly, for the four years prior to his application for citizenship, the Applicant was absent from Australia for 858 days.
[32] Exhibit R1, T1, p. 9; RSFIC Annexure C.
[33] RSFIC Annexure C.
For the purposes of section 22(1)(c) of the Act, the relevant period begins on 1 November 2018 and ends on 1 November 2019. During this period, the Applicant was outside Australia for 340 days, and therefore he was not present in Australia as a permanent resident during this 12-month period.
For the reasons stated above, the Tribunal finds that the Applicant does not meet the general residence requirement in section 21(2)(c) of the Act as he does not satisfy section 22(1)(a) and section 22(1)(c) of the Act.
The Tribunal has considered whether the Applicant can rely on the deeming provisions in sections 22(1A) or 22(1B) to satisfy the criteria in section 22(1) of the Act.
The Tribunal finds that he does not meet the criteria in section 22(1A) of the Act because in the four years prior to lodging his citizenship application, he was absent from Australia for 858 days being more than a total of 12 months.[34] The Applicant cannot therefore rely on section 22(1A) of the Act.
[34] RSFIC Annexure C.
The Applicant also does not meet the criteria in section 22(1B) of the Act because in the 12 months prior to lodging his citizenship application, he was absent from Australia for 340 days being more than 90 days.[35] Accordingly, the Tribunal finds that the Applicant cannot rely on section 22(1B) of the Act.
[35] Exhibit R1, T2, p. 49.
2. Should the discretion in section 22(9) of the Act be exercised?
As the Applicant does not meet the general residence requirement in section 21(2)(c) of the Act it has considered whether the discretion in section 22(9) should be exercised such that he can be deemed to have been present in Australia during the periods he was absent overseas.
In Minister for Immigration and Border Protection v Han,[36] the Full Court of the Federal Court reviewed the legislative history of section 22(9) of the Act.[37] The Court referred to the Explanatory Memorandum in relation to clause 22(9) of the Australian Citizenship Bill 2005,[38] which stated:
‘This new subsection amends the Act by requiring that spouses of Australian citizens meet the same criteria as other adult applicants for citizenship. This reflects current policy, and the modern expectation that adult applicants should qualify in their own right rather than relying on a spousal relationship with another person.
However, it is recognised that in some circumstances the spouse of an Australian citizen may have difficulty meeting the residence requirements, for example if they are accompanying their Australian citizen spouse overseas (for example, spouses of Australians working overseas for international organisations). As a result this subsection introduces a new discretion to waive part or all of the residence requirements for the spouse of an Australian citizen who can demonstrate a close and continuing association with Australia.’[39]
[36] [2015] FCAFC 79.
[37] Minister for Immigration and Border Protection v Han [2015] FCAFC 79 at [48]-[56]. The relevant passages of the Court’s judgment are extracted in Fernandez and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 929 at [20] - [22].
[38] This was in the same form as s 22(9) Australian Citizenship Act 2007 (Cth).
[39] Explanatory Memorandum: Australian Citizenship Bill 2005 (Cth) at 29.
The Court also noted the changes identified in the Explanatory Memorandum which referred to changes announced by the Government on 7 July 2004, which included:
‘…requiring a spouse of an Australian citizen to meet the same requirements for Australian citizenship by conferral as most adult applicants, although allowing wider discretion in relation to residence, where the spouse has a close association with Australia.’[40]
[40] Explanatory Memorandum: Australian Citizenship Bill 2005 (Cth) at 2.
The Court considered the purpose of section 22(9) to be as follows:
‘Another purpose, which is manifest in provisions such as ss 22(1A), (1B) and (9), is to qualify or ameliorate the strictness of the general residence requirement. There is no doubt that the enactment of the Act in 2007 (and s 22(9) in particular) was intended to make it more difficult for the spouse of an Australian citizen to acquire citizenship by conferral in comparison with the previous regime. But that observation does not resolve the issue of statutory construction in this appeal in circumstances where, as noted above, the issue is essentially one of where the Parliament has drawn the line in mitigating the potential hardship created by the need to meet the general residence requirement.[41]
…
… It is equally evident, however, that it [s 22(9)] was intended to ameliorate this policy by conferring a discretion upon the Minister to “waive” part or all of the residence requirements for the spouse of an Australian citizen who could demonstrate a close and continuing association with Australia. The Minister submitted, and we accept, that this material indicates that the mischief or purpose which s 22(9) was intended to serve was to provide a mechanism whereby the general residence requirement and the difficulty which some applicants for citizenship could experience in meeting that requirement could be mitigated.’[42]
[41] Minister for Immigration and Border Protection v Han [2015] FCAFC 79 at [51].
[42] Minister for Immigration and Border Protection v Han [2015] FCAFC 79 at [54]; See also Judd v Minister for Immigration and Border Protection [2017] FCA 827 at [14].
The intention of section 22(9) of the Act was also recognised by the Tribunal in Taher and Minister for Immigration and Border Protection:[43]
‘It appears that the intention was to remove the presumption of cohabitation by requiring spouses of Australian citizens to meet the residency requirements; just as any other applicant is required to do. However, it also appears to have been recognised that cohabitation by spouses remains the normal position and, where a non-citizen spouse chooses to adopt that position with the Australian citizen spouse who is outside of Australia, the non-citizen spouse may be entitled to treat that period outside of Australia as if the person was present in Australia, provided the person was a permanent resident throughout that time.’[44]
[43] [2013] AATA 917.
[44] Taher and Minister for Immigration and Border Protection [2013] AATA 917 at [31].
Before the Tribunal can exercise the discretion provided for in section 22(9) of the Act to treat a period of absence as one in which a person was present in Australia, the four criteria set out in section 22(9)(a)–(d) inclusive must be satisfied.
Are the criteria in section 22(9)(a)-(d) of the Act satisfied?
The Respondent accepts that the Applicant satisfies the criteria in section 22(9)(a)-(c) of the Act because:
(a)he was a spouse of an Australian citizen during his periods of absence from Australia; and
(b)he was not present in Australia for the majority of the four-year period prior to lodging his citizenship application; and
(c)he was the holder of a permanent resident visa during that period[45].
[45] RSFIC at 27.
The Tribunal is satisfied that the Applicant was the spouse of an Australian citizen[46], and that he was not present in Australia during the periods he has been resident in Canada. It is also satisfied that during his period overseas he was an Australia permanent resident, having been granted permanent residency on 15 September 2016.[47]
[46] Exhibit R1, T1, pp. 9 and 26.
[47] Exhibit R1, T1, p. 9.
The Applicant argues that he also satisfies section 22(9)(d) of the Act, specifically that he had a ‘close and continuing association with Australia’ during his periods of absence from Australia.
‘Close and continuing association with Australia’
There is no definition of ‘close and continuing association’ in the Act. Consistent with previous Federal Court and Tribunal decisions, the Tribunal considers that although the concept ‘close and continuing’ is a ‘broad one’,[48] it does require an objective assessment giving regard to ‘a qualitative assessment of the ultimate significance of an applicant’s circumstances’.[49]
[48] Judd v Minister for Immigration and Border Protection [2017] FCA 827 at [14].
[49] Li and Minister for Immigration and Border Protection [2015] AATA 270 at [27].
In Judd v Minister for Immigration and Border Protection,[50] Perry J stated:
‘While not defined in the Act, it was not in issue that the expression “close and continuing association” should be given its ordinary meaning. As such, I accept that the expression requires more than that there be some evidence of a relevant kind of association. Rather it is to be objectively assessed, and requires “a qualitative assessment of the ultimate significance of an applicant’s circumstances”: Re Sabumei and Minister for Immigration & Border Protection [2014] AATA 648 at [25]. Nor was it in issue that the concept of a “close and continuing association” is a broad one, requiring the Minister to adopt what senior counsel for the applicant described as “a multi-factorial approach”.’
[50] Judd v Minister for Immigration and Border Protection [2017] FCA 827 at [14].
In Yang and Minister for Immigration and Border Protection,[51] Senior Member Cotter described the Tribunal’s approach to determining the question of whether a person had a ‘close and continuing association’ with Australia for the purposes of section 22(9) of the Act:
‘Previous decisions of this Tribunal have emphasised that whether an applicant for citizenship had “a close and continuing association with Australia” throughout the relevant period(s) is ultimately a question of fact to be objectively assessed having regard to all the relevant factors, including, but not limited to, the factors listed in the Policy. The forming of an opinion as to whether a person has demonstrated the requisite association is “not a simple mechanical exercise to be undertaken by merely tallying the relevant factors”, or by treating the listed factors in isolation or simply “ticking” them off individually as having been satisfied. What is required is:
... a qualitative assessment of the ultimate significance (of) an applicant's circumstances and whether or not they merited characterisation as evidence of “a close and continuing association with Australia”. In that assessment the fact and extent of the applicant's periods of Australian presence were highly relevant considerations.’[52]
[51] [2017] AATA 364.
[52] Yang and Minister for Immigration and Border Protection [2017] AATA 364 at [26]; Li and Minister for Immigration and Border Protection [2015] AATA 270 at [27].
The factors in CPI 11 listed in [12] above are relevant considerations when undertaking a qualitative assessment of whether the Applicant’s circumstances demonstrate a ‘close and continuing association with Australia.’ The CPIs make it clear that the factors listed may be included in, but are not exclusive of, the totality of matters to be considered in the decision-making process. They also emphasise the need for each case to be assessed on its individual merits.
A number of Tribunal decisions have emphasised the importance of a physical presence in Australia in determining whether the general residency requirement can be satisfied by an applicant.[53] However, the Tribunal also has recognised that each decision must be made on the basis of the evidence before it considered as a whole.[54]
[53] Kim and Minister for Immigration and Border Protection [2015] AATA 67 at [31]; Nicholls and Minister for Immigration and Border Protection [2014] AATA 196 at [33]; Taher and Minister for Immigration and Border Protection [2013] AATA 917 at [47]; Nassif and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 677 at [37].
[54] Nicholls and Minister for Immigration and Border Protection [2014] AATA 196 at [33].
Other decisions have adopted a more holistic approach to the assessment of the ‘close and continuing association’ requirement. In Saba and Minister for Immigration and Border Protection,[55] the Tribunal said in relation to the previous Australian Citizenship Instructions, s 5.18:
‘I have already addressed the “more weight” guidance offered by the Australian Citizenship Instructions. That guidance neither says nor implies that a 365 day period of recent residence is a pre-condition to the statutory satisfaction contemplated by s 22(9)(d) of the 2007 Act. It is simply one factor that may inform the process of taking into account all relevant considerations.
Similarly, too much can be made of the suggested utility of the distinction between association with Australia and mere association with family members. This point is made rather well by the factors identified in the Instructions themselves. There are eleven factors listed. Five of those factors (in which I would include the first factor relating to migration) are essentially concerned with personal relationships. Three of them are concerned with the either the objective fact of presence in Australia, or the subjectively intended place of residence. Two of them are concerned with property ownership and tax obligations. Only one factor, the last one listed, refers to participation in “Australian community based activities and organisations”. I do not mean to suggest by this categorisation of the examples described in the Instructions that any ordering of priority can be discerned from mere numerical comparisons.’ [56]
[55] [2014] AATA 579.
[56] At [47]-[48].
In Paula and Minister for Immigration and Citizenship,[57] the Tribunal stated:
‘The Instructions do not raise a failure to be present for 365 in the relevant 4 years as a bar to a conclusion that a person had a close and continuing association with Australia or to the exercise of the discretion generally. The use of the expressions “more weight” and “less weight” suggest a sliding scale of weight to be attached to a claim for exercise of the discretion, depending on how many days a person has been present in Australia in the relevant period.’[58]
[57] [2012] AATA 543.
[58] At [31].
In Mishra and Minister for Immigration and Border Protection (Citizenship)[59] the Tribunal recognised that it is open to it to have regard to a broad range factors in assessing the ‘close and continuing association’ requirement:
‘The discretion cast upon the decision-maker, in this case the Tribunal, under section 22(9)(d) of the Act is an open one; or, as submitted by the Applicant in his Statement of Facts, Issues and Contentions, “at large”. It has been observed that it is a discretion designed to afford latitude to such a decision-maker in the case of, amongst other things, the spouses of Australian citizens. If admitting such a person to Australian citizenship would accord with the public interest, for example, then there would be a good case to exercise the discretion in the Applicant’s favour.
The language used in section 22(9)(d) namely “close and continuing association with Australia” are not ambiguous, and is capable of being construed when applied to the facts and circumstances of each case. This requires an evaluative judgement. It should not be subject to, as the Applicant contends, a narrow construction.
In the exercise of such an evaluative judgement a decision-maker is entitled, but not bound to take into account the Citizenship Policy.’[60]
[59] [2019] AATA 2479.
[60] At [51]-[53]. Footnote omitted.
Guided by the authorities cited above, the Tribunal respectfully adopts an approach to the assessment of whether the Applicant maintained a ‘close and continuing association to Australia’ during his periods of absence from Australia which involves an evaluative judgement not constrained by a narrow construction of the language of section 22(9)(d) of the Act. The Tribunal also has had regard to the following factors listed in paragraph 3.3 of CPI 11 in so far as they are relevant to the Applicant’s circumstances.
Housing and property
The Applicant and his wife have not purchased a home in Canada and are currently residing in a property on a month-to-month tenancy which can be terminated with one month’s notice. Nor have they purchased a home in Australia as the arrangement they previously had entered into to buy a house and land package is not going ahead. There is no evidence that the Applicant owns any significant assets in Australia or Canada other than the money he holds in his bank accounts in both countries. On the basis of the evidence before it, the Tribunal finds that the Applicant has not maintained a ‘close and continuing association with Australia’ as it relates to housing and the ownership of property during his absence overseas since May 2017.
Employment and income
The Applicant is employed in ongoing full-time employment in Canada with a real estate company. His wife’s employment contract with the notary public was due to end on 31 July 2021. The Applicant’s evidence is that he intends to continue in his current employment to support his family once his wife ceases working. This evidence demonstrates that the Applicant has ongoing permanent employment in Canada and that he has retained only limited employment links with Australia through the renewal of his driver’s licence. On the basis of the evidence before it, the Tribunal finds the Applicant has not had a ‘close and continuing association with Australia’ as it relates to employment and income during his residency in Canada.
Schooling arrangements
The Applicant’s evidence is that his eldest son is attending school in Canada and that his wife has made inquiries about enrolling him into primary school in Australia when they return and was told he can enrol immediately.[61] On the basis of the evidence before it, the Tribunal finds the Applicant has not had a ‘close and continuing association with Australia’ as it relates to the schooling arrangements for his son during the relevant period.
[61] Exhibit A5 (‘Email chain regarding enrolment of child in school’); Transcript of proceedings, 5 July 2021, p. 17.
Frequency and reasons for absences from Australia
The Applicant has been absent from Australia for a large proportion of the relevant period, being 858 days during the four years prior to his application for citizenship. Since his departure in May 2017, the Applicant has returned to Australia for only 25 days. The Applicant was not present in Australia as a permanent resident for 340 days during the 12-month period prior to his citizenship application.
The Applicant’s evidence is that the primary reason for their four year stay in Canada was to allow his wife to gain experience in a position that will further her career. The Applicant relocated to Canada so he could remain living with his wife while she undertook the employment opportunity which she had been offered. Having regard to the factors in paragraph 3.3 of CPI 11, the Tribunal finds that the Applicant was absent from Australia so he could reside with his wife who was undertaking a temporary work contract overseas. This employment was not however with the Commonwealth or at an Australian Embassy, High Commission or Consulate as contemplated by CPI 11. The Applicant was not absent from Australia because he was undertaking temporary work in Canada for an Australian-based company or organisation or aid agency. His evidence is that his motivation for relocating to Canada was to allow his wife to pursue a career opportunity which was not available to her in Australia. In relation to his own career aspirations, the Applicant’s evidence is that the experience he is gaining working at the real estate company in Canada will be advantageous to him in the future as he plans to undertake a realtor course when he returns to Australia to give him the qualifications he needs to obtain employment in the real estate industry. On the basis of the evidence before it, the Tribunal finds the Applicant did not have a ‘close and continuing association with Australia’ as it relates to his income and employment during his absences overseas during the relevant period.
The focus of the Applicant’s evidence is his future intention to return to Australia with his family to resume their residency and life in this country. However, the assessment of a ‘close and continuing association with Australia’ required by section 22(9(d) of the Act is for the purpose of determining whether previous or current absences from Australia by the spouse of an Australian citizen should be treated as periods when they were present in Australia as a permanent resident. Accordingly, the Applicant’s future intention with respect to returning to and residing in Australia is not the issue to which the ‘close and continuing association with Australia’ requirement in section 22(9)(d) is directed.
In relation to the Applicant’s ongoing connections and associations with Australia during his absence overseas for a period of more than four years, the Applicant’s evidence is that these have been limited to his communications with and the single visit to see his sister-in-law who resides in Australia. Whilst this indicates that the Applicant has maintained a close and continuing association with Australians, it does not support a finding that he has had a ‘close association with Australia’ during his absence overseas.
There is no evidence that the Applicant has maintained membership of any clubs or cultural organisations or similar in Australia, or that he has participated in Australian cultural activities in Canada. With the exception of renewing his Australian driver’s licence, the Applicant has not retained any ongoing employment or other vocational connections with Australia. On the basis of the evidence before it, the Tribunal finds the Applicant has not had a ‘close and continuing association with Australia’ as it relates to his participation in the Australian community and cultural life during his four year residency in Canada.
The Tribunal notes that CPI 11 includes as a relevant factor the intentions of an applicant’s close family member, such as a spouse who is an Australian permanent resident, to reside in Australia. The Applicant’s evidence is that his wife intends to return to Australia with him and their children and find work and buy a house where they will reside for the foreseeable future. On the basis of the evidence before it, the Tribunal finds the intentions of the Applicant’s wife to return to and reside in Australia supports a finding that he has maintained a ‘close and continuing association with Australia’ during his absence overseas.
To sum up, the evidence before the Tribunal shows that during his four year residency in Canada, the Applicant has established a life for his family in that country, including attaining permanent residency. He has all but severed his ties to Australia and although he and his wife have genuine intentions to return to Australia to reside with their children, these plans relate to the future and not to past or current absences to which the ‘close and continuing association with Australia’ requirement in section 22(9)(d) is directed.
The Tribunal has undertaken a holistic and evaluative assessment which has included consideration of the factors listed in CPI 11 in determining whether the Applicant had a ‘close and continuing association’ with Australia during his absences overseas. The Tribunal is satisfied that whereas the Applicant has had a ‘close and continuing’ association with his Australian resident sister-in-law during his overseas absence, he has not maintained the same connection with Australia. During the relevant period the Applicant did not own a home, other property or significant assets in Australia, nor did he maintain employment links or ongoing associations with community or other cultural organisations in Australia, to support his claim that he has had a ‘close and continuing association with Australia’.
The Tribunal cannot therefore be satisfied that the Applicant’s association with Australia during the relevant period was ‘close and continuing’ and accordingly it finds that the Applicant does not satisfy section 22(9)(d) of the Act.
Having carefully considered the Applicant’s circumstances, the Tribunal finds that the section 22(9) discretion should not be exercised in his favour.
The finding that the Applicant does not satisfy the general residence requirement makes it unnecessary for the Tribunal to consider whether the Applicant meets section 21(2)(g) as every sub-clause of section 21(2) must be met for him to be eligible for the conferral of Australian citizenship.
CONCLUSION
Having considered the evidence as a whole and for the stated reasons, the Tribunal affirms the decision to refuse the application of Australian citizenship by conferral. It is open to the Applicant to lodge another citizenship application in the future which will be considered in accordance with the relevant law and policy.
DECISION
The Tribunal affirms the Reviewable Decision.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk
.........................SGD...............................................
Associate
Dated: 12 January 2022
Date of hearing: 5 July 2021 Applicant: Mr R Dhillon, Self-represented Solicitors for the Respondent: Mr M Sheedy, Sparke Helmore
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